On March 12, 2018, a group of U.S. children, their non-citizen parents, and other non-citizen adults filed this class action lawsuit against the U.S. Department of Homeland Security (DHS). The plaintiffs challenged DHS’ new rule for determining whether or not to end Temporary Protected Status (TPS) designations for immigrants from countries facing various crises warranting their nationals to stay in the U.S. rather than be returned home. The plaintiffs argued that the new DHS rule violated their rights under the Fifth Amendment as well as requirements set out by the Administrative Procedure Act (APA). Represented by the ACLU, the National Day Laborer Organizing Network, and private attorneys, the plaintiffs sought declaratory and injunctive relief. This case was filed in the U.S. District Court for the Northern District of California and assigned to Judge Edward M. Chen.

As the complaint explained, TPS is a formal mechanism by which individuals from designated countries can legally stay and work in the U.S. when their countries are facing armed conflict, natural disaster, or other extraordinary circumstances making it untenable for them to return. Breaking from previous administrations’ practices, the Trump administration adopted a new rule in assessing whether to continue TPS status that allowed it to ignore consideration of any new crises that emerged since TPS status was granted. The complaint argued that the new DHS rule threatened more than 200,000 individuals with the risk of losing their right to legally work and live in the U.S. Thus, the complaint argued that over 200,000 U.S. citizen children faced the choice of being separated from their families or leaving the only home they had ever known. Moreover, the complaint highlighted President Trump’s various past statements to argue that issuance of the new rule was motivated by racial animus.

The plaintiffs were a combination of children who were U.S. citizens, their non-citizen parents with TPS status, and other adults with TPS status. The plaintiffs also sought to represent the following class: “The U.S. citizen children, from ages five to eighteen, of all TPS holders from El Salvador, Haiti, Nicaragua, and Sudan.”

On May 3, 2018, the parties filed a joint letter brief concerning a discovery dispute they were having. The plaintiffs were seeking early discovery to support a motion for a preliminary injunction, but the defendants opposed the request. On May 17, Judge Chen directed DHS to begin assembling the administrative record to avoid delay if production is later required.

DHS moved to dismiss the case on May 21. On June 15, the parties filed another joint letter brief regarding their discovery dispute. Specifically, the plaintiffs argued that discovery should not be limited to the administrative record given that they had pled separate constitutional claims. The defendants claimed that the court should first order production of the administrative record before considering questions of possible discovery.

Judge Chen issued a summary order denying the defendants' motion to dismiss on June 25, 2018. 2018 WL 3109604. The court held that it had jurisdiction to hear the case because, although the courts were limited in reviewing TPS designation determinations, this case did not challenge a particular determination but rather a broader policy. The court also held that the APA claim stood because DHS had not provided any reasoned explanation for the new rule as required under the APA. The court maintained the Fifth Amendment equal protection claim based on the plaintiffs' racial animus argument, holding that the Fifth Amendment barred racial discrimination in the immigration setting regardless of how much deference the executive branch normally receives on immigration matters. Finally, the court maintained the due process claim because the APA and equal protection claims were sufficiently pleaded. Judge Chen also ordered the defendants to respond to plaintiffs' discovery requests and to produce the administrative records for the TPS termination of Sudan and Nicaragua within 10 days, and for El Salvador and Haiti one week later.

On June 26, Judge Chen directed the parties to file supplemental briefs addressing whether the court should reconsider its holding with respect to the plaintiffs' equal protection claims in light of the U.S. Supreme Court's decision in Trump v. Hawaii.

On July 20, Judge Chen referred the parties to Magistrate Judge Sallie Kim to address their ongoing discovery dispute.

On August 6, 2018, Judge Chen issued another order denying the defendants' motion to dismiss, this time elaborating on his prior order and addressing intervening case law. 321 F.Supp.3d 1083. In addition to affirming his previous conclusions regarding the plaintiffs' APA and due process claims, Judge Chen found that the plaintiffs had plausibly alleged that racial and national-origin animus held by President Trump was a motivating factor in DHS's decision to terminate TPS designations, violating equal protection.

On August 10, Magistrate Judge Kim granted the plaintiffs' request to require the defendants to produce documents they had withheld on the basis of the deliberative process privilege. That same day, the defendants sought an emergency stay of the Magistrate's order pending review by the district court. On August 13, Judge Chen denied the defendants' emergency motion, finding that the production of documents could not be delayed. Judge Chen then denied the defendants' request for relief from the discovery order on August 15.

The plaintiffs moved for a preliminary injunction on August 23, which Judge Chen granted on Oct. 3, 2018. 2018 WL 4778285. The court held that the plaintiffs would suffer irreparable harm, including family separation and being forced to move back to countries where neither the children nor adults had any remaining ties. Moreover, the court held that the U.S. economy itself would be hurt if thousands of TPS status holders were suddenly removed. The court found that DHS had not provided any justification for its new rule, and that if anything, the rule was implemented out of racial animus and to affect the administration's pre-determined outcome to terminate TPS status. Subsequently, DHS appealed the decision to the Ninth Circuit, which assigned the appeal case number 18-16981. The district court approved the parties’ joint motion to stay proceedings pending the appeal on October 26, 2018.

In the district court on Feb. 26, 2019, Judge Chen found Bhattarai v. Nielsen (located here in this Clearinghouse) to be related and reassigned the case to his docket.

The Ninth Circuit heard oral argument on Aug. 14, 2019. On Aug. 21, the Court ordered the parties to submit supplemental briefs addressing whether (1) the government had waived any argument concerning the scope of the administrative record; if not, (2) whether the district court made sufficient findings to warrant additional discovery to supplement the record; and (3) whether the district court abused its discretion by ordering additional discovery. The parties filed their supplemental briefs.

On September 14, 2020, the Ninth Circuit vacated the preliminary injunction. 975 F.3d 872. In an opinion by Judge Callahan, the Ninth Circuit found that the district court did not have jurisdiction to review the plaintiffs APA because the TPS statute itself states that the Secretary of Homeland Security possesses full and unreviewable discretion in designating foreign states under the statute. The Ninth Circuit also found that there was not sufficient likelihood that the plaintiffs would succeed on the merits of their claims, as they did not provide adequate evidence linking President Trump's statements about other countries to the DHS Secretaries' TPS decision-making. As such, after vacating the preliminary injunction, the Ninth Circuit remanded the case to the district court for further proceedings.

DHS petitioned for a rehearing en banc, but the parties agreed to enter the Circuit Mediation Program on June 25, 2021 while the petition for rehearing was pending.

The case is still pending as of October 30, 2021.

Virginia Weeks - 10/21/2018
Erica Lignell - 04/03/2019
Sam Kulhanek - 04/22/2020
Gabrielle Simeck - 10/12/2020
Jordan Katz - 10/30/2021


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